REGULATING DOPING IN NIGERIAN SPORTS

The case of “I would rather lose and feel like a winner than cheat and feel like a loser” in Sports

Despite Nigeria’s dominance in African Sports and her global recognition in diverse sport competitions at the Olympics and similar events, her representatives have been caught in the web of taking unethical steps to ensuring her continuous supremacy over other competitors at regional/global events. Instances abound to support the above, Folashade Abigeal Abugan, a 400m sprint silver medallist with a record 50.89 seconds at the 2008 African Championship was found to have failed a drug test (testosterone prohormone) after she won two silver medals for Nigeria at the 2010 Commonwealth games in Delhi, she was disqualified and banned. In 2012, Tosin Adeloye at the age of 16 was banned from sports for two years for testing positive to Metenolone an anabolic steroid at the Lagos National Sports Festival. In 2014, The highly praised Chika Amalaha who won and set the record in the women’s 53kg weight lifting competition at the 2014 Commonwealth Games was found to have particles of Amiloride and Hydrochlorothiazide, and was stripped off her medal and banned for 2 years. Even Samson Idiata, a high-jumper and gold medallist at the 2015 African Games was stripped of his gold medal for testing positive to clenbuterol.

While Nigeria isn’t the only nation hag-ridden by these sort of activities in recent years, she had until 2019 given very minimal attention to adopting standard measures in tackling the menace of doping in line with global standards. This in no way demeans the commendable effort of the former Minister of Youth and Sport Development, Hon. Solomon Dalung in inaugurating the National Anti-Doping Committee since 2011 as the interim of the ‘yet-to-be’ National Anti-Doping Organisation required under Article 22.5 of the World Anti-Doping Code, an action which among others removed the Nation from the World Anti-Doping Code Non-Compliant List but the delay in establishing a full fleshed, operational and independent National Anti-Doping Organization in accordance with Article 22.5 of the code could prove cooking the Nation’s goose in developing her sports.

It is therefore in recognisance of several problems that is bedevilling sports in Nigeria, Africa and the world at large ranging from hooliganism in African sports, racial chant against black players in European football, conscious fielding of ineligible players in sports, match fixing, neo-human trafficking, heavy circumvention of global sports rules by stakeholders among other sports mal-practices such as doping that this article focuses on illuminating the nature and history of doping in sports, the legal framework set in place to tackle it under the auspices of the World Anti-Doping Agency and the urgency in establishing the Nigeria National Anti-Doping Organization.

Doping which has attributed to have originated from the Dutch word “doop”, a viscous opium juice and drug of choice of the ancient Greeks is  not a new term in sport. It entails the unethical use of drugs prohibited by most international sports organisations to enhance performance. Holistically, The United Nations Educational, scientific and Cultural Organization (UNESCO) refers it to an athlete’s use of prohibited drugs or methods to improve training and sports results. Accordingly, it is not limited to the use of steroids, stimulants, narcotics or marijuana, it also includes the use of forbidden methods such as transfusing blood or gene doping, the refusal to do drug test or an attempt to tamper with doping controls as in the recent case of Russia.

Doping must therefore not be confused with the adoption of legitimate practices used in enhancing performances such as endurance training, dietary manipulation, altitude training, use of aerodynamic equipment and the use of permitted or non-listed substances such as anti-inflammatory medication etc.

It is important to stress that, the illegal act of enhancing sport performance i.e. ‘doping’ defeats the spirit of sports, it undermines the virtues of honesty and fair play, it does not promote the health aspects of sports which for the essence of the World Anti-Doping Code and contravenes the Mission of the International Olympic Charter 2019.

Doping is not actually new to sport or as Richard I.G Holt puts it in his research paper on doping and growth hormones, its history is traceable to the ancient Olympics games when athletes are reported to have taken figs to improve their performance. Wikipedia dates the history of doping back to the creation of the concepts of sports especially in ancient Rome (100 AD) and at the ancient Olympics games at Greece (776 BC – 393 BC) where selected athletes or combatant, chariot horses, were fed diets and giving in-takes to increase their muscles.

In Britain there have been testimonies of doping during events as far back as 1807 during walking races one of which led to the promotion of the sport of cycling. One of such testimonies illuminate the use of laudanum to keep sportsmen awake for 24 hour while competing in a six day bicycle race.

In America’s case, the use of prohibited substance to enhance her athletes’ performance started with the creation of methandrostenolone after John Ziegler a US weightlifting physician and father of anabolic steroid had in 1954 discovered the use of testosterone by their Soviet counterpart.

However, modern doping can be traced to late 19th century where athletes were reported to have been exposed to the intake of Vin Mariani, a mixture of coca leaf extract (the source of cocaine) and wine. By 1950s athletes began taking performance enhancing drug (amphetamines) used by soldiers in the second world war.  Specifically, report has it that the German soldiers including Hitler was infused with anabolic steroids and testosterone to promote aggressiveness and physical strength.

The first Olympic athlete disqualified for doping was Hans-Gunnar Liljenwall who was tested positive for excessive alcohol at the Mexico City Olympics. He took two beers to calm his nerves during the shooting part of a Pentathlon and upon the result of the test, he was stripped of his bronze medal.

In 2012, one of the greatest cyclist, Lance Armstrong confessed to have doped in major cyclist competitions which earned him the world number one over those years until he was stripped of his Tour de France titles from 1998 till 2012.

In 2019, Russia was banned for contravening anti-doping regulations stipulate in the World Anti-Doping Code during the Sochi Olympics in 2014. The ban is to span for Four years.

It is evident from the above that while doping in sports continues to be global concern among sports regulatory body, the World Anti-Doping Agency has continued to treat each case with serious repercussions in line with the Code.

There have been several legislative attempts by both national and international bodies in the bid to tackle the menace of doping in sports. Specifically,  In 1928, The International Association of Athletics Federation (IAAF), the governing body for the sport of track and field became The first ever international sporting body or federation to make rules prohibiting doping in sport.

By 1967, the International Olympic Committee (IOC) which is the supreme authority of the Olympic movement established Medical Commission to Fight Doping using the tripartite principles of ‘’Health of athletes, respect for medical and sports ethics and equality for all competing athletes which lead to the first ever Drug test in an Olympic game in 1968 held in Grenoble, France. However, none of the athletes were tested positive.

The role of IOC in doping is well emphasized under the World Anti-Doping Code, some of which include:

To adopt and implement anti-doping policies and rules for the Olympic Games which conform with the Code.

To withhold some or all Olympic funding and/or other benefits from sport organizations that are not in compliance with the Code.

To take appropriate action to discourage noncompliance with the Code, in accordance with Article 23.5 and the International Standard for Code Compliance by Signatories.

To require all Athletes and each Athlete Support Person who participates as coach, trainer, manager, team staff, official, medical or paramedical personnel in the Olympic Games to agree to be bound by anti-doping rules in conformity with the Code as a condition of such participation.

To cooperate with relevant national organizations and agencies and other Anti-Doping Organizations.

In Nigeria, the Nigeria Olympic Committee in concordance with Chapter 4 of the Olympic Charter 2019, is saddled with the responsibility of ensuring the smooth running of Olympic related affairs in line with the provisions of the Olympic Charter.

By 1999, the World Anti-Doping Agency (WADA) was established at the world Conference on Doping in Sports held in Lausanne which produced the Lausanne Declaration on Doping in Sport. WADA became an independent International anti-doping agency established to coordinate international anti-doping effort in all sports irrespective of National anti-doping agencies which may be created by signatories. For instance, In Nigeria, the body established to conform with the rules and standard of WADA in combating doping is the Nigeria national anti-doping agency.

In 2003, the World anti- doping Agency launched its first code called the World anti-doping code (WADC). The objective of the Code is However, to ensure its relevance in light of recent developments in doping and to provide stricter measures/sanctions in tackling doping, WADA amended some core provisions of the 2003 WADC in 2009, 2015,2017, 2018 and the recent version is that which came into effect on 1st June 2019.

The financial burden of WADA is on world government and The International Olympic Committee while the determination of any matter relating to doping is within the jurisdiction of the Court of Arbitration for Sport (CAS).

The WADC is a comprehensive document on doping divided into four parts; Part one: Doping Control, Part two: Education and Research, Part Three: Roles and Responsibilities, Part Four: Acceptance, Compliance, Modification and Interpretation.

Article 1 of the Code defines ‘Doping’ as the occurrence of one or more of the anti-doping rule violations set forth in Article 2.1 through Article 2.10 of the Code. In other words, Doping is the existence of any of the violations stipulated in Article 2.1 to 2.10 of the code.

Article 2 stipulates actions, circumstances that can be tagged anti-doping rule violations and the include:  

Where there is the presence of prohibited substance, metabolite or markers in an athlete’s sample. The code make such a strict liability. However, the Athlete’s fault will be taken into consideration in determining the consequences of this anti-doping rule violation under Article 10. Note that the quantity of a Prohibited Substance or its Metabolites or Markers in an Athlete’s Sample shall constitute an anti-doping rule violation.

Where upon investigation there is the Use or Attempted Use by an Athlete of a Prohibited Substance or a Prohibited Method.. Note that The success or failure of the Use or Attempted Use of a Prohibited Substance or Prohibited Method is not material. It is sufficient that the Prohibited Substance or Prohibited Method was Used or Attempted to be Used for an anti-doping rule violation to be committed.

Use or Attempted Use may also be established by other reliable means such as admissions by the Athlete, witness statements, documentary evidence, conclusions drawn from longitudinal profiling, including data collected as part of the Athlete Biological Passport, or other analytical information which does not otherwise satisfy all the requirements to establish “Presence” of a Prohibited Substance under Article 2.1.

Evading, Refusing or Failing to Submit to Sample Collection. Evading Sample collection, or without compelling justification, refusing or failing to submit to Sample collection after notification as authorized in applicable anti-doping rules.

Any combination of three missed tests and/or filing failures, as defined in the International Standard for Testing and Investigations, within a twelve-month period by an Athlete in a Registered Testing Pool would amount to violating doping regulation.

Tampering or Attempted Tampering with any part of Doping Control. Conduct which subverts the Doping Control process but which would not otherwise be included in the definition of Prohibited Methods. Tampering includes the intentional interfering or attempting to interfere with a Doping Control official, providing fraudulent information to an Anti-Doping Organization or intimidating or attempting to intimidate a potential witness.

Possession of a Prohibited Substance or a Prohibited Method. Possession by an Athlete or his support person In-Competition of any Prohibited Substance or any Prohibited Method, or Possession by an Athlete or his support person Out-of-Competition of any Prohibited Substance or any Prohibited Method which is prohibited Out-of-Competition unless the Athlete establishes that the Possession is consistent with a Therapeutic Use Exemption (“TUE”) granted in accordance with Article 4.4 or other acceptable justification.

Note that Acceptable justification would not include, for example, buying or Possessing a Prohibited Substance for purposes of giving it to a friend or relative, except under justifiable medical circumstances where that Person had a physician’s prescription, e.g., buying Insulin for a diabetic child. However, Acceptable justification would include, for example, a team doctor carrying Prohibited Substances for dealing with acute and emergency situations.

Trafficking or Attempted Trafficking in any Prohibited Substance or Prohibited Method

Administration or Attempted Administration to any Athlete In-Competition of any Prohibited Substance or Prohibited Method, or Administration or Attempted Administration to any Athlete Out-of-Competition of any Prohibited Substance or any Prohibited Method that is prohibited Out-of-Competition.

Assisting, encouraging, aiding, abetting, conspiring, covering up or any other type of intentional complicity involving an anti-doping rule violation, Attempted anti-doping rule violation or violation of Article 10.12.1 by another Person.

List of Prohibited Substances and Technique under the World Anti-Doping Code

The List is one of the six international standards that are mandatory for all signatories of the WADC. It designates what substances and methods are prohibited both in and out of competition and which substances are banned in a particular sport. The current List was approved by the WADA’s Executive Committee and published alongside the 2020 summary of Major Modifications and Explanatory Notes and the 2020 monitoring program on 23 September 2019 and came into force on 1 January 2020.

Some categories of  banned substances and techniques by the World Anti-Doping Agency include: androgens, blood doping, peptide hormones, stimulants, diuretics, narcotics and cannabinoids.

The Anti-Doping Organization shall have the burden of establishing that an anti-doping rule violation has occurred. The standard of proof shall be whether the Anti-Doping Organization has established an anti-doping rule violation to the comfortable satisfaction of the hearing panel, bearing in mind the seriousness of the allegation which is made. This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt. Where the Code places the burden of proof upon the Athlete or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability. The method of establishing facts and presumptions is stipulated in Article 3.2 of the Code.

Public Disclosure of anti-Doping Report  

The identity of any Athlete or other Person who is asserted by an Anti-Doping Organization to have committed an anti-doping rule violation, may be Publicly Disclosed by the Anti-Doping Organization with results management responsibility only after notice has been provided to the Athlete or other Person in accordance with the code.

 Fair Hearing of Anti-Doping 

For any Person who is asserted to have committed an anti-doping rule violation, each Anti-Doping Organization with responsibility for results management shall provide, at a minimum, a fair hearing within a reasonable time by a fair and impartial hearing panel. However, The right to a hearing may be waived either expressly or by the Athlete’s or other Person’s failure to challenge an Anti-Doping Organization’s assertion that an anti-doping rule violation has occurred within the specific time period provided in the Anti-Doping Organization’s rules.

Note that the Notice of the Anti-Doping Organization must be made to the parties concerned to enable it appeal where desirable.

Means of Dispute Resolution

Each government will respect arbitration as the preferred means of resolving doping-related disputes, subject to human and fundamental rights and applicable national law.

Some of the disciplinary actions available against the violation of the World Anti-Doping Code include:

Automatic Disqualification of Individual Results

Article 9 of WADC provides that an anti-doping rule violation in Individual Sports in connection with an In-Competition test automatically leads to Disqualification of the result obtained in that Competition with all resulting Consequences, including forfeiture of any medals, points and prizes.

Note that If the Athlete establishes that he or she bears No Fault or Negligence for the violation, the Athlete’s individual results in the other Competitions shall not be Disqualified, unless the Athlete’s results in Competitions other than the Competition in which the anti-doping rule violation occurred were likely to have been affected by the Athlete’s anti-doping rule violation.

Ineligibility for a at least Two years for Presence, Use or Attempted Use or Possession of a Prohibited Substance or Prohibited Method 

Elimination of the Period of Ineligibility where there is No Fault or Negligence. If an Athlete or other Person establishes in an individual case that he or she bears No Fault or Negligence, then the otherwise applicable period of Ineligibility shall be eliminated.

Where the anti-doping rule violation involves a Specified Substance, and the Athlete or other Person can establish No Significant Fault or Negligence, then the period of Ineligibility shall be, at a minimum, a reprimand and no period of Ineligibility, and at a maximum, two years of Ineligibility, depending on the Athlete’s or other Person’s degree of Fault.

In the case of multiple violation of anti-doping rules, the culprit may be made ineligible for a period twice the initial number of years given at the first violation. Where it is the culprit third time of violation of the rule, he may be made ineligible for his/her lifetime.

Note that an anti-doping rule violation for which an Athlete or other Person has established No Fault or Negligence shall not be considered a prior violation for purposes of this Article.

Consequences for Team Sports If more than two members of a team in a Team Sport are found to have committed an anti-doping rule violation during an Event Period, the ruling body of the Event shall impose an appropriate sanction on the team (e.g., loss of points, Disqualification from a Competition or Event, or other sanction) in addition to any Consequences imposed upon the individual Athletes committing the anti-doping rule violation.

Consequences of Doping in Sports:

Some of the dangers of Doping in sports includes:

Death: Knut Enemark Jensen collapsed and died while competing in a 100 kilometre race. Autopsy showed that he had a drug called nicotinyl tartrate in his system. He became the first athlete to die in Olympic Competition due to Doping

Hallucination

Blood Doping can cause an increased risk of heart failure, stroke, kidney damage, high blood pressure, infections, poisoning, overloading of your white cells, reduction of platelet count and problems with the circulatory system.

As with any injectable drug, using a syringe to dope increases the risk for contracting infectious diseases such as HIV/AIDS and hepatitis.

It Weakens the immune system and reduces memory (especially the intake of Narcotics)

Steroids decreases sperm calculations.

The need for Nigerian National Anti-Doping Organisation

As earlier noted, the move by the former minister of the Ministry of youth and Sport Development and former head of the National Sports Commission (the Nigerian apex body regulating sports), Hon. Solomon Dalung in inaugurating the National Anti-Doping Committee to temporarily mange the affairs of the National Anti-Doping Organisation was a step in the right direction. 

However, the delay of putting up a workable legislative framework for the birth of the National Anti-Doping Organisation to tackle the ever increasing cannot be overemphasized in the development of Nigerian sports. Some of the benefits of having such is not limited to the following:

It ensures the codification of the relevant law establishing the organisation.

It creates an organise structure for tackling doping in Nigeria.

It ensures the independence of the body in line with the provision of WADA

It is critical to the evaluation by investors and internationally sport body, of the growth and development of Sports in the nation.

It would ensure an improved management structure of Olympic reacted matters in the country etc.

In Summary, there is no gainsaying that even though there has been no case of death from the unethical use of prohibited substance in Nigeria, the menace of Doping in sports attacks the very purpose of the Olympic movement, it creates unfairness and gradually destroys the fabrics of sportsmanship. It is on that bases among others that the World Anti-Doping Agency was formed. The body is to work in compliance with the Olympic Charter, The World Anti-Doping Code, UNESCO and other related bodies and laws/treaties to ensure that its objectives in tackling doping in sports is achieved.

It is in the above spirit that the WADC (Code), which is reviewed periodically provides for several sanctions in Article 9, 10 and 11 for violators. Nigeria must therefore as a signatory to the above bodies/treaties take bold steps to totally comply with above laws and as well create an effective legal framework that would aid eliminate doping Nigerian Sports.

EZZA CHIGOZIE JUDE

(LL. B (Hons), Sport Law Enthusiast)

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